Hill v. Finnemore

• Decision Date: 17 May 1934
• Citation: 172 A. 826
• Parties: HILL v. FINNEMORE.
• Court: Maine Supreme Court

172 A. 826

HILL

v. FINNEMORE.

Supreme Judicial Court of Maine.

May 17, 1934.

Exceptions from Superior Court, Kennebec County.

Action by John F. Hill against George R. Finnemore. Verdict for plaintiff, and defendant moves for a new trial and brings exceptions.

Motion and exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES,' THAXTER, and HUDSON, JJ.

C. A. Blackington, of Waterville, and Goodspeed & Fitzpatrick, of Gardiner, for plaintiff.

F. Harold Dubord, of Waterville, for defendant.

HUDSON, Justice.

Action on the case to recover damages for personal injuries alleged to have been caused by defendant's negligent operation of his automobile on Silver street in the city of Waterville on the twelfth day of September, 1932. At nisi prius the plaintiff recovered a verdict of $6,791. The case comes forward on motion for new trial and exceptions.

The ground of exception that the trial court erred in refusing to grant the defendant's motion for a directed verdict will be considered in connection with the motion for new trial.

Motion for New Trial.

Silver street leads off westerly from Main street at right angles its easterly and, where this accident happened, is in the congested business section of the city. On the southerly side of Silver street is located Arbo's Garage, in front of which at the curb is a gas pump. The street here from curb to curb is 31 feet wide. At about 11 o'clock in the forenoon of this day, the plaintiff, proceeding westerly on Silver street, stopped at this garage to purchase gas for his car, parking it by the southerly curb headed westerly and with its rear end about 6 feet westerly from the gas pump. He purchased the gas, tendered the garage man a bill in payment for it, and waited for his change.

The defendant, a lieutenant of the Waterville police, accompanied by another police officer, Mr. Colby, was returning from an official visit farther west on Silver street, the defendant himself driving a Plymouth coupe owned by the city, to which coupe was attached a siren. This coupé hit the plaintiff while he was at some point in the street in front of the garage, the exact location of the impact, with reference to the curb and the rear end of his parked car, being in dispute, and caused the injuries for which damages are sought.

The parties' versions of the happenings are impossible of reconciliation.

The plaintiff's account of the accident, briefly stated, is, that while standing "about five or six feet back of his car, or back of the gas pump," he saw John Ware on the other side of the street, whereupon he called to him and "started to cross the street to speak to him." At this place there was no crosswalk nor any for quite some distance in either direction. In answer to the question of his attorney to "tell the jury in your own words what you did," he said, "I looked toward Main Street and saw there was no traffic in the street and then I stepped out off from the entrance to the garage and I looked by my car. As I stepped down my first step, there was nothing in sight and on the second step I saw this car coming rapidly toward me and I stopped that second step and made a jump to get back but he was coming at such a high rate of speed and I observed instantly that the driver had no idea of my presence there—he was looking directly the other way;—and before I could jump from there he had swerved right into where I was."

In corroboration the plaintiff produced two eyewitnesses, Simpson and Dulac, who, at the time, were diagonally across the street in front of the Vigue Block, which is northeasterly of Arbo's Garage. Nothing in the case discloses any relationship to the parties, bias or prejudice upon the part of these witnesses. The gist of Mr. Simpson's testimony is that he saw the police car coming at a fast rate of speed, 30 to 35 miles an hour, farther down on Silver street, and he said: "I noticed this man coming out of the garage, coming off of the sidewalk. And as I saw that second step as he turned away that coupe came in toward him and then hit him and then swerved off into the street." He also observed that the defendant was looking northerly just before the accident, not in the direction of the plaintiff.

The other corroborating witness, Mr. Dulac, close by Mr. Simpson, testified: "I saw that car" (meaning the defendant's) "kind of swerve in a little toward the curb; and then I saw this man go in the air," and later, "and there was another car here and when they got by that car it come around it and sort of come right in toward the south, the sidewalk"; also that the defendant was driving at least 25 miles an hour and that the plaintiff, when hit, was about 10 feet back of his car and 3 feet out from the curb.

In denial of the plaintiff's contentions, the defendant insists that the accident was attributable to no negligence upon his part He says that at a point on Silver street, approximately 165 feet westerly of the gas pump, he brought the coupe to a dead stop on account of an A & P truck that was entering Silver street from Charles street, and then proceeded along to the point of collision at a speed from 15 to 18 miles per hour. He testified: "I saw a car parked headed the wrong way on our right. * * * And as we got abreast of the car this party stepped right out, one step right in front of us, and before we could realize what had happened we struck him" and that he did not see him at all before he stepped out from behind his automobile. Furthermore, he claims that he was looking ahead, although he admitted that he had observed a blue sedan car when just beyond Charles street and made some remark in regard to it to his companion, Mr. Colby. To quote his testimony, he said: "It had been all simonized and shone like a mirror. It attracted my attention." This blue sedan was in front of the bakery on the opposite side of Silver street from the gas pump. He did not claim that he sounded the siren on his car and he denied that he swerved his car to the right. His statements were corroborated by Mr. Colby.

The plaintiff contends that the defendant operated his car negligently in several respects. First, that the rate of speed employed was negligent, considering the place where the car was being operated, congestion of traffic, and the time of day; second, that he did not use his siren and give proper warning of his approach at that place; third, that he was inattentive, did not look straight ahead, and gave no attention whatever to the traffic; and, fourth, that he negligently swerved to the right and struck the plaintiff. The defendant, denying these contentions, claimed, in addition, that the proximate cause of the accident was contributory negligence upon the part of the plaintiff himself in suddenly stepping out from behind his car, unexpectedly leaving a place of safety, and going in front of the defendant's car when it was too late for the defendant to check its progress in time to avoid striking him.

A very important question of fact in the case was the place where the plaintiff left the curb and stepped into the street with relation to the rear of his parked car. As to this, the evidence was in dispute. The plaintiff and his witnesses said it was some 10 to 15 feet back from the car; the defendant and his witness, Colby, just behind the car. Another important fact for determination by the jury was the plaintiff's exact location when hit with relation to the curb from which he had stepped. The plaintiff contended that he was exactly upon a white parking line, approximately 3 feet from the curb. The defendant, on the contrary, said he was farther out into the street. Question: "How far had he stepped out behind the right side of his car when you struck him?" Defendant's answer: "Oh, I think just about one good step."

The evidence as to what the plaintiff did to see if there were any traffic as he took those steps out into the street came only from the plaintiff and his witnesses. It was that the plaintiff looked toward Main street and saw no car approaching, saw nothing in sight as he took his first step, although he looked, and on the second step saw the defendant's car coming rapidly toward him, whereupon he attempted to step backward but was hit in so doing when the defendant swerved his car into him.

The jury, by its verdict, must have found the defendant guilty of negligence on at least some one of the above contentions and have found the plaintiff guiltless of contributory negligence.

In passing upon this motion for a new trial, we must determine whether or not the jury's verdict is manifestly and palpably against the evidence. If it is not, the verdict must stand, even though the court itself might have arrived at a different result. Chenery v. Russell (Russell v. Chenery), 132 Me. 130, and cases therein cited on page 134, 167 A. 857. A careful study of the record convinces the court that there was sufficient credible evidence to justify the jury in finding negligence upon the part of the defendant, in this regard at least; that without the exercise of due care to observe the road in front of him, negligently he swerved his car in toward and collided with the plaintiff. "Thoughtless inattention on the highway, as elsewhere in life, spells negligence." Callahan v. Bridges Sons, Inc., 128 Me. 346, 349, 147 A. 423, 424; Rouse v. Scott, 132 Me. 22, 24, 164 A. 872.

The jury no doubt believed that not only was he inattentive to his driving in not looking ahead, but that his mind was otherwise concentrated on the "shiny" sedan on the north side of the street, which, he admits, "attracted his attention."

If mere inattention spells negligence, voluntarily diverted attention with a preoccupied mind manifests negligence in an even greater degree. Thus is explained the fact, and no doubt the jury found it to be a fact, that in passing the plaintiff's parked car he swerved his car to within about 3 feet of the southerly curb....